Market’s claim that she was denied overtime could plausibly
satisfy the adverse employment action element of her prima facie
case, because the denial of overtime would affect Market’s
overall pay, even if it would not affect her salary.
Unfortunately, the claim is not supported in the record. First,
Market has made no effort to demonstrate the extent of any
financial loss she would have suffered as a result of the alleged
overtime denial, and the Court has no basis to evaluate whether
any such loss would be significant enough to constitute a
“materially” adverse action. Significantly, Sue Valena, one of
the other Maintenance Administrators Market alleges got the
overtime work that she should have been permitted to work, worked
only 3 hours of overtime during the relevant period. The Court
would be hard pressed to find that the loss of only 3 hours of
pay constitutes a materially adverse employment action. See,
e.g., Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th
Cir. 1996) (suggesting that a minor effect on non-salary type
income would not amount to an adverse employment action,
especially where the diminution in income was not effected
because of a disciplinary matter). The fact that Market was off
work for most of 2001, see Market Deposition, pp. 46-47, further
suggests that Market would have been unlikely to accrue much in
the way of overtime, even in the absence of any alleged

discrimination.

19


EEO officer, met with Market on September 6, 2000, and Czerwinski
was removed as Market’s supervisor in October 2000. See
Ameritech’s Memorandum of Law in Support of its Motion for
Summary Judgment, pp. 5-6. But, at her deposition, Market said
that she complained to Brocious about Czerwinski’s “bitch” and
“black bitch” comments as early as May of 2000. Market
Deposition, p. 463. Thus, if Market is to be believed (acain,
something the Court assumes at this stage), Ameritech actually
waited five months before taking action to stop the harassment.
Based on that evidence, a jury could reasonably find that the
remedial action taken by Ameritech was less than swift, and that
Ameritech failed to exercise reasonable care to correct promptly
the alleged harassing behavior.

Based on the foregoing, the Court finds that issues of fact
preclude the entry of summary judgment on Market’s hostile
environment claim. Specifically, the Court finds that issues of
fact exist concerning whether Market was, in fact, harassed, and,
if she was harassed, whether she was harassed because of her race
or because of her combative and confrontational behavior on the
job; issues of fact also exist concerning Market’s subjective
view of the environment and concerning Ameritech’s affirmative

defense to vicarious liability under Faragher and Ellerth.°

‘Although the Court does not today specifically address
Ameritech’s potential liability for the alleged harassment
committed by Fricilone, issues of fact may also exist on this

36


Bargaining Agreement I would have been promoted.” In paragraph
69, Market states that she “was denied overtime because my
supervisors, Robert Czerwinski and Tim Lasiewicz, harboured
racial prejudices toward me as a black female that they...
acted upon in the workplace.” Id., 467. These are exactly the
type of conclusory allegations that Rule 56 counsels should be
disregarded on summary judgment. “Rule 56 demands something more
specific than the bald assertion of the general truth of a
particular matter, rather it requires affidavits that cite
specific concrete facts establishing the existence of the truth
of the matter asserted." Hadley v. County of Du Page, 715 F.2d
1238, 1243 (7th Cir. 1983). Market’s affidavit is short on
concrete facts.

For the same reason, the Court will disregard statements
such as “Burton can not possibl[y] be a witness to what I would
have a tendency accuse every manage of making racist decisions,”
Market Affidavit, 931; “[t]here is no way management or craft
workers could be aware of whether I did or did not get along with
Czerwinski,” id., 134; “no one can judge a person’s personality
trait in one or two hours and one or two phone conversations,”
id., 943; “I was a trained union steward with 28 years of service
surely Hsu knows I would not have [threatened] an individual’s
life,” id., 944; “[Paulette] McWaters would not have received any

complaints from subordinates, including me (Plaintiff) because

13



that the harassment that allegedly forced Market out of her job
would have stopped after Czerwinski left. Based on this record,
no reasonable jury could find that Market’s decision to retire in
June of 2002 amounted to a constructive discharge because of
behavior that occurred at least a year earlier.

In addition to challenging Market’s ability to demonstrate
the third element of her prima facie case, Ameritech argues that
Market is unable to demonstrate the fourth element; it argues
that she cannot show that the company treated any
similarly-situated white employee more favorably. Market’s
argument on this element of the prima facie case is neither
weighty nor elucidating. Her argument, in its entirety, is that
“(t]he record is replete with evidence of differential treatment
of African American[s]. Plaintiff's 56.1 Statement makes it
clear that African Americans were treated differently than non-
African Americans.” Plaintiff’s Memorandum in Opposition to
Defendants’ Motion for Summary Judgment, pp. 12-13. This
statement ignores Market’s burden under the law. The fact that
some African-Americans were treated differently than some non-
African-Americans does not mean that Market was treated less
favorably than non-African employees who were similarly situated
to her, which is the relevant inquiry under Title VII.

Although she has not clarified the point, Market’s argument

on this element of the prima facie case would seem to spring from

23


other criteria spelled out in the CBA. He, in turn, seemed to
view her as a huge pain in his neck. No doubt contributing to the
animosity between Czerwinski and Market was the fact that, from
March 1999 to October 2001, Market served as a union steward. In
that capacity, she filed grievances on behalf of her co-workers
and on her own behalf. By her own account, Market was a zealous
union advocate, filing more grievances than the other union
stewards. In her first two months on the job, Market filed more
than 100 grievances; from August 2000 to March 2001, she filed
200 to 300 grievances. And she filed more than 50 grievances on
her own behalf. She solicited grievances and encouraged her co-
workers to file grievances against the company. She continually
stirred the pot, and she participated in (and possibly even
initiated) a campaign to have Czerwinski fired. It is not
surprising that the two could not get along.

In addition to her many grievances, on September 1, 2000,
Market filed a charge of discrimination with the EEOC. Shortly
thereafter, she met with Ameritech’s internal EEO officer, James
Hsu, and, following that meeting, the company removed Czerwinski
as Market's supervisor; beginning in October of 2000, Market
reported to Avery Owen. At some point thereafter - there is a
dispute as to whether it was November 2000 or March 2001 -
Czerwinski left the Hi-Cap Center altogether. Market filed a

second charge with the EEOC on January 11, 2001. She received


is, whether the environment was subjectively hostile or abusive.
There is some evidence to suggest that Market did not. At her
deposition, she stated that she told Lucinda Williams that
Czerwinski’s repeated “bitch” and “black bitch” remarks “did not
bother me.” Market Dep., p. 462. And, at least with respect to
Fricilone’s comments, there is no evidence to establish that the
behavior impacted Market’s ability to do her job. But the record
does contain evidence from which a jury could reasonably find
that Czerwinski’s animosity and constant insults impacted the way
in which Market performed her job. For starters, the record
shows that Market was out of work for two months in the summer of
2000 and for most of 2001, and that she was paid for it. This
would certainly seem to show that someone in the medical
community found Market to be incapable of performing her job
during that time. And, at least during the first leave of
absence, a jury could reasonably find, based on Market’s
testimony, which is admittedly self-serving, that the stress
inflicted upon her as a result of the alleged harassment at the
Hi-Cap Center played some role in her incapacitation.

Finally, assuming that the alleged harassment actually
occurred, the Court considers whether the circumstances of the
case provide any basis to hold Ameritech liable for that
harassment. Because Market alleges that the hostile environment

was created by her supervisors (primarily Czerwinski and

34



Nor do the facts established in the record jibe with
Market’s allegations. Market alleges that, after she returned
from her first leave of absence in August of 2000, Czerwinski
denied her the opportunity to work any overtime. Yet she
admitted at her deposition that she had, in fact, worked overtime
in August and September of 2000. Market Deposition, pp. 348-49.
She also admitted at her deposition that, by October of 2000,
Czerwinski was no longer her supervisor, id. at pp. 504-05, which
suggests that, after that time, he had little if any say over her
ability to work overtime. Thus, to the extent Market has pinned
her allegations concerning overtime to Czerwinski, the
allegations would fail. Accordingly, the Court finds that Market
has not demonstrated an adverse employment action based upon the
denial of overtime.

Market’s constructive discharge claim similarly fails.
“Constructive discharge, like active discharge, is a materially
adverse employment action.” EEOC v. University of Chicago
Hospitals, 276 F.3d 326, 331 (7th Cir. 2002) (citing Fitzgerald
v. Henderson, 251 F.3d 345, 357-58 (2d Cir. 2001)). “But to
demonstrate constructive discharge, the plaintiff must show that
she was forced to resign because her working conditions, from the
standpoint of the reasonable employee, had become unbearable.”
Id. (citing Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th Cir.

1998)).

20


In sum, the Court finds that Market cannot establish a prima
facie case of race discrimination, and Ameritech is, therefore,
entitled to summary judgment on this claim.

2. Market’s Retaliation Claim

A prima facie case of retaliation under Title VII similarly
requires a plaintiff to show that she suffered some adverse
employment action. Specifically, she must show “that (1) after
lodging a complaint about discrimination, (2) only [she], and not
any otherwise similarly situated employee who did not complain,
was (3) subjected to an adverse employment action even though (4)
[she] was performing [her] job in a satisfactory manner." See
Johnson, 325 F.3d at 897 (citing Stone v. City of Indianapolis
Public Utilities Division, 281 F.3d 640, 642 (7th Cir. 2002);
Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir.
2002)). For the most part, the adverse employment action
evidence Market offers in support of her retaliation claim is the
same adverse employment action evidence she offered in support of
her race discrimination claim. Just as that evidence fell short
of the mark above, it falls short of the mark here.

But Market’s retaliation claim does appear to incorporate
one additional allegation: she alleges that she was denied
benefits under the company’s Sickness & Accident Disability Plan
in retaliation for filing this lawsuit. See Market Deposition,

pp. 543-50. Ultimately, this claim goes nowhere, however,

26


asked about Market’s retirement, Dr. Koenig indicated that, in
his view, Market had decided to retire because she realized that
“it was easier and better for her to do that than to continue the
fight.” Deposition of Dr. Richard Koenig, p. 70. Read in
context, the “fight” Dr. Koenig was referring to likely had
nothing to do with racial issues and everything to do with union
issues.

But there is actually a bigger problem with Market’s
constructive discharge allegation: the alleged constructive
discharge occurred at least a year, and possibly as long as
eighteen months, after the alleged harassing behavior ceased.

The record shows that Czerwinski ceased being Market’s supervisor
in October 2000, and that he left the Hi-Cap Center in November
2000. Market’s affidavit attempts to establish that Czerwinski
did not leave the center until March of 2001. But even if the
Court accepts that story, that still means that Czerwinski was
gone from Market’s life for more than one full year before Market
elected to pursue the voluntary retirement option. And the
record contains no evidence suggesting that Czerwinski’s
harassment continued after he left the Hi-Cap Center. Nor is
there evidence demonstrating any name-calling or harassment from
other employees after that date; Market’s grievances and the
behavior challenged therein all cover the period before

Czerwinski left Hi-Cap. And the Court has no reason to doubt

22


Lasiewicz), Ameritech is essentially strictly liable for the
discriminatory conduct. See Mason, 233 F.3d at 1043 (citing
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998);
Faragher v. City of Boca Raton, 524 U.S. 775 (1998)). But where,
as here, “no tangible employment action is taken,‘ a defending
employer may raise an affirmative defense to liability or
damages, subject to proof by a preponderance of the evidence . .

.” Faragher, 524 U.S. at 807. To avoid liability for hostile
environment harassment by a supervisor, an employer must show:
“(a) that [it] exercised reasonable care to prevent and correct
promptly any [] harassing behavior, and (b) that the plaintiff
employee unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the employer or to avoid
harm otherwise.” Id.

Ameritech seeks to establish the first element of its
affirmative defense by noting that it took swift and decisive
action to remove Czerwinski from Market's life after she
complained about the alleged harassment. Under Ameritech’s
version of events, Market first complained about Czerwinski’s
behavior to Tom Brocious, the director of the Hi-Cap Center, in

August or September of 2000; James Hsu, the company’s internal

‘Examples of “tangible employment actions” include “a
discharge, demotion, or undesirable reassignment,” see Faragher,
524 U.S. at 808; Ellerth, 524 U.S. at 762-63, none of which, as
the Court explained above, happened here.

35


the company’s satisfaction; (3) she suffered an adverse
employment action; and (4) a similarly-situated employee who was
not a member of a protected class was treated more favorably by
Ameritech. See Johnson v. Cambridge Industries, Inc., 325 F.3d
892, 897 (7th Cir. 2003) (citing Stalter v. Wal-Mart Stores,
Inc., 195 F.3d 285, 289 (7th Cir. 1999). Ameritech argues that
Market’s claim fails on the third and fourth elements; it argues
that she cannot show that she suffered an adverse employment
action, and that she cannot show that similarly-situated
employees were treated more favorably.

Although the Seventh Circuit has defined “adverse employment
action” broadly, “not everything that makes an employee unhappy
is an actionable adverse action.” Smart v. Ball State
University, 89 F.3d 437, 441 (7th Cir. 1996). To be actionable,
adverse actions must be “materially adverse” and “more than a
‘mere inconvenience or an alteration of job responsibilities.’”
Oest, 240 F.3d at 612 (quoting Crady v. Liberty National Bank &
Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). Examples of
actions that qualify as “adverse” include termination of
employment, demotion evidenced by a decrease in wages or salary
or a less prestigious title, a material loss of benefits,
significantly diminished material responsibilities or other
incidences that might be unique to a particular situation. Id.

Market was neither fired, nor demoted; nor did she suffer

17



Company, 238 F.3d 919, 926 (7th Cir. 2001). "Consequently,
‘{w]here a deposition and affidavit are in conflict, the
affidavit is to be disregarded unless it is demonstrable that the
statement in the deposition was mistaken, perhaps because the
question was phrased in a confusing manner or because a lapse of
memory is in the circumstances a plausible explanation for the
discrepancy.’" Id. (quoting Russell v. Acme-Evans Co., 51 F.3d
64, 67-68 (7th Cir. 1995).

Many of the statements in Market's affidavit directly
contradict her earlier deposition testimony. For example, in
paragraphs 6 and 32 of her affidavit, she states that she did not
solicit grievances. Yet, at her deposition, when she was asked
whether she solicited grievances, she said “of course.” Market
Deposition, p. 382. In paragraph 20 of her affidavit, Market
disagrees with Ameritech’s statement that Czerwinski was abrasive
to all women, regardless of race. Yet, at her deposition, she
admitted that that was the case. See Market Deposition, pp. 430-
31. She also states, in paragraph 20 of her affidavit, that
Czerwinski called her a “nigger bitch,” in addition to calling
her a “bitch” and a “black bitch.” She repeats this allegation
in paragraph 39 of her affidavit. Yet, at her deposition, she
claimed only that Czerwinski called her a “bitch” and a “black
bitch”; she never mentioned that Czerwinski called her a “nigger

bitch.” Her attempt to add this inflammatory epithet to the


Western-Southern Life Insurance Co., 12 F.3d 668, 675 (7th Cir.
1993) (the word “nigger” is an unambiguously racial epithet);
Bailey v. Binyon, 583 F.Supp. 923, 927-28 (N.D. Ill. 1984) (it is
impossible to regard the term “nigger” as anything but
discrimination based on race).

Next, the Court considers whether the alleged harassment was
sufficiently severe or pervasive to be actionable. To
demonstrate harassment that rises to the level of a statutory
violation, Market must prove that “her work environment was both
subjectively and objectively offensive; ‘one that a reasonable
person would find hostile or abusive, and one that the victim in
fact did perceive to be so.’” Cerros v. Steel Technologies, Inc.,
288 F.3d 1040, 1045 (7th Cir. 2002) (quoting Gentry v. Express
Packaging Co., 238 F.3d 842, 850 (7th Cir. 2001); Faragher v.
City of Boca Raton, 524 U.S. 775, 787 (1998)). In deciding
whether a given work environment is hostile or abusive, the Court
“must consider the totality of the circumstances, includirg the
‘frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance.’” Cerros, 288 F.3d at 1046 (quoting
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)).

Taking the facts in the light most favorable to Market, see

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), on an

32



The Court next considers whether Market has demonstrated
that, to the extent the harassment occurred, it occurred because
of her race. Ameritech argues that, if Market was treated badly
by management, it was because of her combative and
confrontational personality, and not because of her race.? And
there is a fair amount of support for this argument in the
record. Even Market admits that Czerwinski’s and Lasiewicz’s
nasty comments arose out of union matters. At her deposition,
Market stated that Czerwinski “made nasty comments, called me a
Black bitch” and said he was “sick of you, Black bitch” because
she refused to stop soliciting grievances after he told her not
to do so. Market Dep., pp. 385-86. She also stated that
Lasiewicz “called me a bitch every time I mentioned union
business to him, or any time I came to him for technicians who
were not on line.” Id. at 441. She later stated that Lasiewicz
called her a bitch whenever he disagreed with her about a work
matter or a grievance issue. Id. at 453. Similarly, she stated
at her deposition that one time she was walking with Lucinda

Williams, another co-worker, when Market went into Czerwinski’s

sAmeritech made this same argument in connection with

Market’s discrimination and retaliation claims. It argued that,
to the extent Market was treated worse than other employees, it
was because of her personality and not because of her race. But
because the Court found that Market’s claim failed at the prima
facie case stage, it did not address whether the evidence would
show that this stated reason was merely a pretext for
discrimination.

29


hostile working environment and denied her overtime. Complaint,
418-9. She further alleges in her complaint that: (1) Czerwinski
“re-assigned work so that African~Americans received a
disproportionate share of the work”; (2) on numerous occasions,
both Czerwinski and Lasiewicz referred to Market as a “bitch”;
(3) on numerous occasions, both referred to African-American men
as “crackheads”; and (4) both repeatedly allowed and encouraged
other employees to refer to African-American women as “black
bitches” and to refer to African-Americans as “niggers.”
Complaint, 1913, 15-17. Market also alleges that the defendants
tried to interfere with her union steward duties, telling other
employees not to file complaints with her, and harassing those
employees who did file complaints with her. Id. q121-22.
Finally, she alleges that, in addition to being denied overtime,
she was denied job training that was permitted to similarly-
situated white employees, and that she was denied equal work
conditions as similarly-situated white employees. Id. 9924-26.
Market also alleges that the defendants retaliated against her
because she complained about the discriminatory treatment;
specifically, she alleges that the company denied her medical
benefits because she filed an EEOC complaint. Complaint, %134-
37.

At her deposition, Market further clarified her allegations:

she stated that her discrimination allegations were based upon


right-to-sue letters from the EEOC on both charges on about April
30, 2001, and, on May 24, 2001, she sued, alleging race
discrimination and retaliation. Shortly before her deposition in
this case, Market applied to participate in a voluntary early
retirement program offered by the company; the company determined
that she was eligible for the program, and, through that
voluntary retirement program, Market left the company on June 22,
2002. Prior to retiring, Market had been absent from work for
several extended periods. She took a leave of absence from June
29, 2000 to August 2, 2000; then she took another leave of
absence from March of 2001 to October of 2001; she took more time
off in November and December of 2001, and then, after returning
for a short period of time, took off from January of 2002 until
the time she retired.

Although the Court is aware that Market filed charges with
the EEOC, the exact nature of those charges remains a mystery.
Market has never filed copies with the Court; she failed to
attach them to her complaint and they are not otherwise a part of
the record. Thus, the Court is left to rely upon Market’s
characterization of the charges.' In her complaint, Market
alleges that the EEOC charges focused on the actions of her

superiors, Czerwinski and Lasiewicz, who she claims created a

‘Ameritech has never challenged the suit on the basis that
the allegations are beyond the scope of the EEOC charges, and so
the Court assumes that the allegations are properly before it.

5



any loss of salary or benefits. Market’s tenure at Ameritech
ended on June 22, 2002, when she accepted a voluntary retirement
package being offered by the company as part of a company-wide
effort to reduce headcount. Her arguments on the adverse
employment action element are based on the alleged denial of
overtime and the reassignment of screening responsibilities. She
also argues that, although she retired as part of a voluntary
retirement program, she was actually constructively discharged
from the company.

The reassignment of screening duties does not amount to an
adverse employment action. Importantly, when Market became a
Maintenance Administrator, screening was not part of the job;
that function was performed by Telecommunication Specialists.
The company transferred the function to Maintenance
Administrators in 1998, and then decided to transfer the function
back to Telecommunication Specialists in 2000. Although it is
true that “a dramatic downward shift in skill level required to
perform job responsibilities can rise to the level of an adverse
employment action,” Smart, 89 F.3d at 441, there is no evidence
that the reassignment of the screening function in any way
affected the skill level required to perform the Maintenance
Administrator job. The Court has no basis to conclude, for
example, that the move gutted the job or stripped Market of the

plum or most prestigious aspects of her job title.

18


Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine
issue of material fact exists if the “evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To
survive summary judgment, the non-moving party must offer more
than “mere conclusory” allegations. Nowak v. St. Rita High
School, 142 F.3d 999, 1002 (7th Cir. 1998) See also Matsushita
Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986
{The non-moving party must offer more than a “metaphysical doubt
as to the material facts.”). The non-moving party will not
survive summary judgment if it cannot present sufficient evidence
to support each element of its case on which it will bear the
burden of proof at trial. Celotex, 477 U.S. at 322. Moreover,
the Court will disregard all facts not properly supported by the
record. Brasic v. Heinemann’s Inc., 121 F.3d 281, 284 (7th Cir.
1997).

B. Ameritech’s Motion to Strike

Speaking of facts not properly supported by the record,
Ameritech has moved to strike the affidavit Market submitted in
support of her response to Ameritech’s Rule 56.1 Statement of
Facts. “It is by now well-settled that a party may not attempt
to survive a motion for summary judgment by manufacturing a
factual dispute through the submission of an affidavit that

contradicts prior deposition testimony.” Amadio v. Ford Motor


her allegations that Czerwinski denied her the opportunity to
work overtime, while allowing other Maintenance Administrators to
do so.* At her deposition, Market claimed that, when she
returned from her first leave of absence in August of 2000,
Czerwinski denied her overtime, while allowing others to work
overtime. First, as the Court has explained, the evidence belies
Market’s claim that she was not permitted to work overtime during
this period; the overtime records show that she worked 10.25
hours of overtime in August and September of 2000, and Market
admitted at her deposition that she had worked this overtime.

See Market Dep., pp. 348-49; Market Deposition Exhibit 7. The
record also contains overtime records for four other Maintenance
Administrators, Sue Valena, Shirley Beach, Paula Carillo, and
Doris Elder, showing that they each worked a small amount of
overtime during the first quarter of 2001. But this evidence
alone does not make Market’s case. Putting aside Doris Elder,
who is African-American, Market would still have to show that
she, Valena, Beach and Carillo were similarly situated, and she

has not done so.

*~he various grievances in the record contain a wide variety
of allegations about the alleged disparity in treatment of
African-American and non~-African American employees at the Hi-Cap
Center, But Market has given the Court no reason to think that
these allegations, asserted in grievances filed on behalf of
others, bear on her discrimination claim. Certainly, Market has
provided no basis for the Court to conclude that any of the
employees allegedly treated better than the other groups of
people were “similarly situated” to her.

24


Minute Order Form (06/97)

United States District Court, Northern District of IMlinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Arlander Keys than Assigned Judge
CASE NUMBER 01 C 3841 DATE 11/12/2003
CASE a .
TITLE Burlean Market ¥s- SBC Amer beak
{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(eb) Qa Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) Qo Answer brief to motion due. . Reply to answer brief due.
(4) Q Ruling/Hearing on set for at
(5) im Status hearing[held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at '
(7) oO Trial[set for/re-set for] on. at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
* OOFRCP4(m) Local Rule 41.1 COFRCP41(a)(i) O FRCP41(a)(2).

ao) [Other docket entry] | Memorandum Opinion and Order entered. Defendant Ameritech’s Motion

for Summary Judgment [#27] is granted in part and denied in part. Defendant Ameritech’s Motion

to Strike [#34] is granted in part and denied in part. Status hearing set for 11/21/03 at 9:00 a.m. AK-—
(1) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
a

notices required.
No notices required. number of notices.

a | Notices mailed by judge’s staff, NOV'7 3 2003
Notified counsel by telephone. due docked
Docketing to mail notices. | S
Mail AO 450 form. oytsia’s" f docketbiz deputy initials
Copy to judge/magistrate judge. LUNGS wees

WHE 1122003

date mailed notice

courtroom 1307 WH 7
deputy’s a2 Wil ff AON ed 7
initials

Dathjtithd eeivedin YD! UAT
central Clerk’s Offied) 1

“7

mailing deputy initials



much more about her conversations, the affidavit appears to be
false, an attempt to patch up her deposition testimony.

In numerous other instances, Market is simply argumentative,
purporting to deny the statement, but offering a response that
does not deny or contradict the statement. For example, in
paragraph 51 of her affidavit, Market states that “Lucinda
Williams did not testify that she overheard Joe Fricilone say
‘dumb nigger’ once. I was present when Lucinda Williams
testified and she said she herself heard Fricilone say ‘dumb
nigger’ while walking with me.” First, the second sentence does
not support the first sentence; the statement does not really
contradict the substance of Ameritech’s statement of fact, but is
simply argumentative. Second, Williams’ testimony was recorded
in a transcript, which shows that, in fact, Williams testified
that she heard Fricilone say “dumb niggers” only one time.
Williams Dep., p. 143. Market cannot change that testimony by
denying - or purporting to deny - its existence. These types of
responses violate the letter and spirit of Local Rule 56.1, and
make the Court’s work much more difficult, because they require
the Court to parse through the record to determine whether there
is actually a valid basis for denial, or whether, despite
Market’s argumentative spin, she should be deemed to have
admitted the statement.

Market’s affidavit also contains unsupported conclusory

11


litany of atrocities allegedly inflicted by Czerwinski appears to
be a transparent attempt to bolster her case with fabricated
evidence. If it were true, Market would have mentioned it at her
deposition.

Similarly, in paragraph 936 of her affidavit, Market states
that she never told Tom Brocious that Czerwinski had called her a
black bitch. Yet, at her deposition, Market specifically stated
that she had “complained to Tom Brocious that it [Czerwinski and
Lasiewicz calling her a “bitch” and a “black bitch”] was
happening” and that she “told Tom [Brocious] that they were doing
that, and continually told Tom about that ... .” Market
Deposition, pp. 460-63. In paragraph 37 of her affidavit, Market
states that the anonymous petition to get Czerwinski fired
specifically alleged racial discrimination and specifically
mentioned Joe Fricilone’s use of the word “nigger.” Yet, at her
deposition, Market admitted that the anonymous letter had nothing
to do with racial discrimination. See Market Dep., p. 491. And
even more importantly, the letter itself contradicts her
affidavit and is consistent with her deposition testimony. In
paragraphs 38 through 44, Market describes her conversations with
James Hsu, the internal EEO manager, in much greater detail than
she was able to provide at her deposition, taken more than a year
earlier. See Market Deposition, p. 499. Again, without some

explanation as to why Market was suddenly able to remember so

10


management, who agreed that Market’s style and personality made
her tough to deal with sometimes. For example, Darlene Tunstall,
who is African-American, worked at Hi-Cap from 1998 to 2000, and
directly supervised Market during 1998 and 1999, said that Market
seemed to have a “chip on her shoulder” and that she “possessed a
combative, confrontational, and sometimes hostile style” in
dealing with her union steward responsibilities. Affidavit of
Darlene Tunstall, 99711, 13. Earlean Burton, another African-
American female who worked at Hi-Cap from about 1990 to 2000 and
who served as a union steward during that time, stated that
Market “generated a lot of conflict,” was confrontational and had
an “us (non-management/union) against them (management)
attitude.” Affidavit of Earlean Burton, (97-8. And the record
contains many more examples of co-workers who seemed to think
that Market’s harassment, if it occurred, was a function of her
personality and not her race.

But there is one glaring point in the record that suggests
the harassment had everything to do with race. If Market is to
be believed - something the jury will have to decide -
Czerwinski, Lasiewicz and Fricilone didn’t just call her names;
they called her names that were either tinged with race (“black
bitch”) or outright manifestations of racial animus (“nigger”)
This alone would seem to be enough to create an issue of fact

about whether the harassment was race-based. See Rodgers v.

31



and Lasiewicz’s cubicle to request an appointment to discuss a
grievance, and, after she left, she and Williams heard Czerwinski
tell Lasiewicz that he was “so sick of this Black bitch.” Id. at
461.

The evidence also shows that Ameritech’s description of
Market as combative and confrontational is not inaccurate. At
least during her tenure as a steward, Market was an in-your-face
force to be reckoned with; indeed, she seemed to take great pride
in that. At her deposition, she admitted that she filed more
grievances than the other union stewards, even soliciting
grievances from her co-workers and prodding them to file when
they were not inclined to do so. Czerwinski submitted an
affidavit in support of Ameritech’s motion stating that, at
grievance meetings, Market cursed and spoke in a belligerent
manner. Affidavit of Robert Czerwinski, 9119-10 (attached as
Exhibit 1 to Ameritech’s Motion for Summary Judgment). This is
consistent with Market’s testimony that she abided by “the
equality rule” in grievance meetings, meaning that she felt she
owed no deference or respect to supervisors in those meetings,
and that she did not back down even when asked to do so. Market
Deposition, pp. 367-73.

And it was not just Czerwinski who had issues with Market.
Ameritech submitted deposition testimony and affidavits from

various other Hi-Cap Center employees, some management, some non-

30


her managers calling her a “bitch” and a “black bitch,” and based
upon Fricilone’s persistent use of racial epithets. See
Deposition of Jurlean Market, pp. 517-26. She explained that her
retaliation allegations were based upon the company stripping her
of her screening responsibilities, denying her the opportunity to
work overtime, interfering with her union steward
responsibilities and denying her claim for leave benefits. See
Market Deposition, pp. 527-61.

Ameritech has moved for summary judgment on Market’s
complaint, arguing that, even if the Court assumes that all of
her allegations are true, Market still cannot make out a prima
facie case of race discrimination and retaliation under Title
VII. Market, of course, disagrees, and, to support her
opposition to the motion, she submitted a 57-page affidavit.
Ameritech has moved to strike the affidavit, and the Court
considers that motion, as well as the motion for summary
judgment, below.

DISCUSSION

A. Summary Judgment Standards

Summary judgment is proper when the "pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a

judgment as a matter of law." FED. R. CIV. P. 56(c); see also



Market argues that her work environment was so hostile that
she was forced to accept voluntary retirement to preserve her
mental health. And there is actually some support for this
allegation in the record. In the affidavit Market submitted in
opposition to Ameritech’s Statement of Undisputed Facts, Market
alleges that her decision to retire was not voluntary, and that
she was forced to seek and accept the early retirement package
because she could no longer endure the hellish environment at the
Hi-Cap Center. Market Affidavit, 9983-84. She specifically
states in her affidavit that she felt forced out by the emotional
distress intentionally heaped upon her by Czerwinski and
Lasiewicz on an almost daily basis. Id., 984. Strictly
speaking, this testimony does not contradict what she said at her
deposition. Although she stated at her deposition that the
retirement option was “strictly voluntary,” Market Dep., pp. 56-
57, that is not entirely inconsistent with her later-added claim
that her decision to seek that “option” was based on her sense
that if she did not leave, the allegedly hostile work environment
would send her over the edge. And she also said at her
deposition that she felt that she “had to retire early.” Id. at
p. 585. Additionally, Market’s allegation is buttressed to some
extent by the deposition testimony of Dr. Richard Koenig, a
psychiatrist who treated Market for what he diagnosed as a

depressive disorder from May 7, 2001 to February 11, 2003. When

21


because Market herself admitted that she received benefits under
the Plan “(flor the entire time I was ill.” JId. at 552. At her
deposition, she casually mentioned that she is still owed two
days’ pay. But that claim appears to have nothing to do with her
sick leave; based on her deposition testimony about her various
leaves of absence, the dates for which she claims she is still
owed money occurred after she returned from sick leave and while
she was out on leave for her mother’s funeral. See id., p. 554
(the relevant dates were December 17 and 18, 2001), pp. 46-47
(she was off on sick leave from March to October 2001 and was off
for her mother’s funeral in December). [In short, Market cannot
show that she suffered an adverse employment action, and the
Court will, therefore, grant Ameritech’s motion for summary
judgment on Market’s retaliation claim.

3. Market’s Hostile Environment Claim

Although Market did not specifically allege a hostile
environment claim in her complaint, she argues that the nature of
her allegations, i.e, the allegations of persistent racial slurs
and name calling, demonstrates that such a claim is being
alleged. To recover on a racially hostile work environment
claim, a plaintiff must show that: (1) she was subject to
unwelcome harassment; (2) the harassment was based on her race;
{3) the harassment was sufficiently severe and pervasive that it

altered the conditions of her environment and created a hostile

27


the Telecommunications Specialists. Neither the initial
reassignment, nor the subsequent reassignment, affected Market’s
base pay.

During Market’s tenure at the Hi-Cap Center, the atmosphere
was often tense, and employee morale was often low, though the
parties dispute the cause of the tension and low morale. The
record shows that offensive and derogatory language - some of
which was unambiguously racial - was not uncommon. For example,
according to Market, one of the employees at the center, Joe
Fricilone, frequently referred to his African-American co-workers
as “niggers” or “dumb niggers”; Fricilone directed this slur at
Market on one occasion, and he called her a “black bitch”
“numerous, numerous times.” Additionally, according to Market,
one of the supervisors in the Hi-Cap Center, Robert Czerwinski,
referred to his male subordinates as “crackheads,” and Czerwinski
and Tim Lasiewicz, another supervisor, called Market a “bitch”
and a “black bitch” on an almost daily basis for a period of
several months in mid to late 2000.

Market and Czerwinski had a terrible rapport. Market viewed
Czerwinski as someone who felt he was above the rules; she
repeatedly accused him of failing to follow the collective
bargaining agreement between the union and the company, choosing
instead to run the Hi-Cap Center as he saw fit, and often making

decisions on the basis of favoritism, instead of seniority or


McWaters was not involved in the work assignments,” id., 158;
“the following witnesses cannot verify or deny any racially or
sexually offensive language was used in the workplace,” id., 162;
“{t]here is no way [Priscilla] Davis could have observed anyone’s
conduct in the workplace,” id., 165; and “Jim Kassing, my union
business representative, cannot possibly be aware of any facts
that would support a claim that I was denied overtime because of
my race,” id., 471.

Finally, many of the statements in Market’s affidavit are
based on impermissible hearsay. Examples of such statements
include the following: “[Darlene] Tunstall told me that the
decisions about overtime which were being grieved were not her
(Tunstall’s) decisions,” Market Affidavit, 99; “Rene McMullen [a
Telecommunications Specialist supervisor] expressed concerns to
me as a union steward that [Marie] Gorski had delayed the screens
job duties in order to gain overtime,” id., 412; and “Dr. Koenig,
my psychiatrist, informed me to hold my discussions regarding
work-related issues with my therapist,” id., 168.

The Court strikes paragraphs 5-6, 16, 20-24, 29-31, 33, 36-
44, 51-54, and 67, and parts of paragraphs 8, 9, 12, 47, 58, 62,
65, and 68. The Court will not rely upon the statements made in
these paragraphs, but will, where applicable, rely upon the more
reliable evidence in the record, including the transcript from

Market’s earlier deposition and the transcripts of other

14


2002. And she has not done so. Market alleges that she suffered
an adverse employment action in that she was stripped of her
screening responsibilities, she was denied the opportunity to
work overtime, and she was constructively discharged by being
forced to accept voluntary retirement. But she has offered no
evidence linking the alleged denial of overtime or training to
the alleged slurs, and the alleged constructive discharge, which
occurred more than a year after the name-calling would have
stopped, is temporally too remote to qualify as direct evidence.
See Oest, 240 F.3d at 611-12. Accordingly, the Court finds that
Market cannot sustain a charge of discrimination under the direct
method, and turns, therefore, to the indirect method spelled out
in McDonnell Douglas.

Under McDonnell Douglas, Market must first establish a prima
facie case of discrimination; if she succeeds, Ameritech then has
a chance to offer a non-discriminatory reason for any adverse
employment action Market suffered; and if Ameritech does so,
Market must then submit evidence that Ameritech’s explanation is
simply a pretext for discrimination. See McDonnell Douglas, 411
U.S. at 802; Oest, 240 F.3d at 612 (citations omitted).

Ameritech argues that Market falls short on the prima facie case.

To establish a prima facie case for race discrimination, in
violation of Title VII, Market must show that: (1) she belongs to

a protected class; (2) she was performing her job at Ameritech to

16


particular types of circuits (those designated DS-1 and above).
Market started at the Hi-Cap Center as a “Technical Associate”
and then, in 1998, became a “Maintenance Administrator” in the
provisioning group, which managed the “turn up and testing
processes of new orders.” Maintenance Administrators screened
and answered incoming calls from customers, updated the
computerized note screens that provided technicians with customer
information, and performed work on Wired Office Tests, which
showed when an order should be wired in a central office. The
Maintenance Administrator position was a non~management union
position, governed by a collective bargaining agreement. Market
worked the first shift at the Hi-Cap Center, from 8:30 a.m. to
4:30 p.m., along with more than 100 other employees, at least
half of whom were African~American.

When Market started at the Hi-Cap Center, the job of
screening incoming calls was not part of the Maintenance
Administrators’ job description; rather, that job fell to
Telecommunications Specialists, who, on the union hierarchy, were
a step above the Maintenance Administrators. In 1998, however,
union and management negotiated to downgrade the screening
responsibilities so that the Maintenance Administrators could
perform this function. At some point in the summer of 2000,
while Market was away from work on leave, management decided to

automate the screening function and to give the function back to


Should this claim proceed to trial, the Court will take great
care to ensure that the trial is limited to these issues.
CONCLUSION

For the reasons explained in this opinion, the Court grants
Ameritech’s motion for summary judgment with respect to Market’s
race discrimination and retaliation claims, but denies the motion
with respect to Market’s hostile environment claim.
Additionally, the Court grants Ameritech’s motion to strike in
part; the Court strikes paragraphs 5-6, 16, 20-24, 29-31, 33, 36-
44, 51-54, and 67 of Market’s affidavit, and parts of paragraphs

8, 9, 12, 47, 58, 62, 65, and 68 of Market’s affidavit.

DATED: November 12, 2003

Qdaror boys

ARLANDER KEYS i
United States Magistrate Judge

claim with respect to whether Fricilone had supervisory authority
over Market.

37


The Seventh Circuit has interpreted “similarly situated” to
mean "directly comparable . .. in all material respects."
Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.
2002). “To determine whether two employees are directly
comparable, a court looks at all the relevant factors, which most
often include whether the employees (i) held the same job
description, (ii) were subject to the same standards, (iii) were
subordinate to the same supervisor, and (iv) had comparable
experience, education, and other qualifications.” Ajayi v.
Aramark Business Services, Inc., 336 F.3d 520, 532 (7th Cir.
2003) (citing Patterson, 281 F.3d at 680). Market has not
addressed these issues, though the Court assumes that Valena,
Beach, and Carillo all had the same job description and all
reported to Czerwinski or Lasiewicz. The Court has no
information concerning these employees’ experience, education or
other qualifications. But it is clear that Market differed from
these employees in at least one material respect: she was a union
steward, who was constantly butting heads with management over
union issues and other perceived wrongs; more to the point, she
was an aggressive and zealous union steward, filing more
grievances than other stewards and even soliciting grievances
from complacent employees. In this respect, her behavior and her
position as union steward set her apart from the other

Maintenance Administrators.

25


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JURLEAN MARKET, °
nov 3 2003

Plaintiff,

vs. Case No.: 01 C 3841
ILLINOIS BELL TELEPHONE COMPANY,
d/b/a AMERITECH ILLINOIS, ROBERT
CZERWINSKI, and TIM LASIEWICZ,

Magistrate Judge
Arlander Keys

Defendants.

MEMORANDUM OPINION AND ORDER

Jurlean Market, who is African-American, sued her former
employer, Ameritech Illinois, and two of her former supervisors,
Robert Czerwinski and Tim Lasiewicz, alleging race discrimination
and retaliation. On July 19, 2001, the district judge to whom
the case was originally assigned dismissed the claims against
Czerwinski and Lasiewicz, leaving Ameritech as the only
defendant. Shortly thereafter, the parties consented to proceed
before a magistrate judge, and, on October 12, 2001, the case was
reassigned to this Court. It is presently before the Court on
Ameritech’s motion for summary judgment.

FACTS & PROCEDURAL HISTORY

Jurlean Market began working for Ameritech in 1974. In
1995, Market transferred to Ameritech’s high capacity digital
center; that center, commonly referred to as the “Hi-Cap Center,”

handled a high volume of calls and services relating to


almost daily basis from May 2000 to at least August 2000,
Czerwinski and Lasiewicz called Market a “bitch” or a “black
bitch,” and Czerwinski repeatedly referred to African-American
male employees as “crackheads.” Additionally, Joe Fricilone, a
co-worker who Market perceived - rightly or wrongly - to have
some input in disciplinary matters, once called her a “dumb
nigger,” repeatedly called other African-American employees
“niggers” or “dumb niggers,” and called her a “black bitch”
“numerous, numerous times.” Although the epithets directed at
other employees weigh less heavily in the analysis, see, e.g.,
Russell v. Board of Trustees of the University of Illinois at
Chicago, 243 F.3d 336, 343 (7th Cir. 2001), on the whole, there
is little question that a reasonable person would find this
persistent barrage of epithets (if it occurred) to be hostile and
abusive. It is bad enough to think about an employee being
called such names by her supervisors once or twice; it is far
worse to imagine enduring this behavior each and every workday
for a period of several months. Even taking into account that
Market was off work for part of the time, that is still a lot of
name calling. The sheer pervasiveness of the alleged harassment,
coupled with the racial nature of the chosen epithets, is likely
enough to satisfy the objective part of the test.

The Court next considers whether Market actually found the

environment at the Hi-Cap Center to be hostile or abusive; that

33


or abusive working environment; and (4) there is a basis for
employer liability. Mason v. Southern Illinois University at
Carbondale, 233 F.3d 1036, 1043 (7th Cir. 2000) (citing Parkins v.
Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1032 (7th
Cir. 1998)).

It would be an understatement to say that the first element
listed above is disputed. Market alleges that she was subjected
to unwelcome harassment in the form of almost daily epithets from
her supervisors, Czerwinski and Lasiewicz; she also alleges that
a co-worker called her a “dumb nigger” at least once, repeatedly
called other employees “niggers” and “dumb niggers” and called
her a “black bitch” “numerous, numerous times.” Czerwinski and
Lasiewicz vigorously deny that they ever called Market names,
especially “bitch” or “black bitch.” There seems to be no
dispute about Fricilone’s derogatory remarks, though, as the
Court will explain later, his remarks alone would probably not be
enough to satisfy the “severe or pervasive” elements. Thus, the
case will likely live or die based upon whether the fact finder
believes Market or whether the fact finder believes Czerwinski
and Lasiewicz. But summary judgment is not the time to resolve
such “he said, she said” disputes. See Russell, 243 F.3d at 340,
341. For now, the Court finds that issues of fact remain as to
whether Market was, in fact, subjected to race-based harassment,

as she alleges.

28



assertions. Rule 56(e) of the Federal Rules of Civil Procedure
requires that affidavits offered in opposition to summary
judgment "be made on personal knowledge, ... set[ting] forth such
facts as would be admissible in evidence, and ... show[ing]
affirmatively that the affiant is competent to testify to the
matters stated therein." “Although ‘personal knowledge’ may
include inferences and opinions, those inferences must be
substantiated by specific facts.” Drake v. Minnesota Mining &
Manufacturing Co., 134 F.3d 878, 887 (7th Cir. 1998) (quoting
Davis v. City of Chicago, 841 F.2d 186, 189 (7th Cir. 1988)). In
many instances, that is not the case with Market’s affidavit.

For example, in paragraph 5 of her affidavit, Market states that
the tension and stress at the Hi-Cap Center “was not due to the
workload but due to Czerwinski’s foul mouth and the hostile work
environment he created and encouraged.” In paragraph 8 of her
affidavit, she states that “{dJenial of overtime was used by
Robert Czerwinski and Tim Lasiewicz to control and punish African
Americans and any person lodging complaints about [their]
overtime selection process.” In paragraph 21 of her affidavit,
Market states that “Czerwinski was not straightforward. He was a
liar and a racist.” In paragraph 47, Market states that she was
“denied a promotion to the higher wage group because Czerwinski,
Hsu, Brocious, and Hager lied about the reassignment of the

screener’s job to a higher wage title. Under the Collective

12


witnesses’ depositions.

c. Market’s Title VII Claims

Ameritech asks the Court to award summary judgment in its
favor on Market’s race discrimination claim, her retaliation
claim, and her hostile environment claim.

1. Market's Race Discrimination Claim

Market may prove her race discrimination claim either by
providing direct evidence of discrimination or by proceeding
under the indirect, burden-shifting method of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Market argues that she has
both direct and indirect proof of her claim. The Court quickly
rejects her argument with respect to the former. Direct
evidence, the “smoking gun” type of evidence, is hard to come by.
Allegedly discriminatory remarks, which is what Market relies on
to support her claim, qualify as direct evidence only “if they
are ‘related to the [adverse] employment decision in question.”
Oest v. Illinois Department of Corrections, 240 F.3d 605, 611
(7th Cir. 2001). And it is the rare employer who will so
blatantly link its racial animus to a decision to fire or
discipline an employee.

Here, Market would have to show that the persistent barrage
of name-calling was related to the adverse employment decisions
she alleges - namely the denial of overtime and training

opportunities and her alleged constructive discharge in June

15